With two decisions dated March 31 and April 15, 2016, the Employment Division of the French Supreme Court (“Cour de cassation”) clarified the legal framework applicable to trial periods. The Supreme Court explained how to reconcile the collective labor agreement and French labor code provisions on the maximum duration of the trial period (I) and clarified the rules on the notice period applicable to terminations of trial periods (II).

Maximum duration of the trial period

Prior to the French law of 25 June 2008, the duration of the trial period was essentially determined by the collective labor agreement (“CLA”) or the employment agreement. This law set mandatory maximum durations for trial periods¹. It also provides, by way of exception, that longer periods provided by CLAs entered into before 26 June 2008 remained applicable without any limit in time. By contrast, shorter periods determined by the same CLAs were maintained only for a transition period, until 30 June 2009.

It is in this context that the Supreme Court reminded, in a decision dated March 31, 2016², that since July 1^st 2009, the maximum trial periods provided by the Labor Code have replaced the shorter durations provided by CLAs, renewals included, when the CLAs were entered into before the June 25, 2008 law. In the present case, the “Bureaux d’études techniques” CLA (so-called “Syntec”) was concerned, which provides for a three month trial period (renewable once) applicable to engineer and executives, whereas Article L. 1221-19 of the French Labor Code provides for a maximum period of four months. The employer could therefore provide for a trial period of four months, renewable once with the employee’s agreement, therefore a maximum period of eight months.

The Supreme Court noted that two situations are possible:

• either a new CLA providing for shorter trial periods than that of the French Labor Code has been entered into after June 25, 2008: in that case, the shorter trial period would apply ,
• or no new CLA was entered into, so that the provisions of the CLA on trial period durations cease to have any effect on June 30, 2009 and the provisions of the French Labor Court would apply.

Termination of the trial period: possibility to provide for a longer contractual notice period than that provided by the French labor code

French Law No. 2008-596 dated June 25, 2008 introduced a minimum notice period applicable in the event of termination of the employment agreement during the trial period, whose duration varies according to the employee’s seniority and party initiating the termination³.

In a decision dated April 15, 2016⁴, the French Supreme Court validated the contractual provisions providing for a longer notice period for the employer than those of the French Labor Code.

In this case, the employer terminated the employment agreement during the trial period nine days after employment started. The employer complied with the 48 hour notice period provided by the Labor Code, whereas the employment agreement provided for a one week notice period. The employee therefore filed a claim before the Labor Court against the employer for non-compliance with the contractual notice period. The claim was recognized as valid by the Supreme Court: the employer should have complied with the longer contractual notice period, as it was more favorable to the employee.

Rendered on the basis of Article 1134 of the French Civil Code recognizing the binding force of individual agreements, this decision is however based on the principle of favor. A similar solution would logically be rendered in the case of CLA provisions which provide for a longer notice period, as CLAs can derogate from Labor Code provisions if they are more favorable to the employee⁵.

This decision is interesting insofar as it considers that a longer notice period, in the event of termination of the trial period by the employer, is more favorable to the employee and must then apply. The question however arises as to the scope of this decision which has not been published in the Supreme Court “Bulletin”. Would the same decision have been rendered if the employee had requested termination during the trial period?

It is not certain that a longer period would be considered as more favorable to the employee if s/he initiates temrination of the trial period (for instance, to join a new company). In this regard, it seems possible and advisable to provide for different notice period durations according to the party initiating the termination of the employment relationship. This solution is already provided by certain CLAs, after the trial period, as regards a dismissal or resignation⁶.

1. Article L. 1221-19 and L. 1221-21
2. Cass. Soc., March 31, 2016, n° 14-29.184
3. Article L. 1221-25 and 1221-26 of the French Labor Code
4. Cass. Soc., April 15, 2016, No. 15-12.588
5. Article L. 2251-1 of the French Labor Code
6. The Metallurgy Engineers and Executives CLA provides for a notice period between three and six months for dismissal of category II and III executives, according to age and seniority, whereas the resignation notice period is always of three months.

[View source.]